Employee Interviews Related to Arbitrations

The FAA has advised you that it wants to question you about a matter at issue in a pending arbitration. Do you have to participate? What happens if you don’t want to participate? What should happen if you do participate?

Employee rights regarding this situation arise from the Brookhaven case. [IRS, Brookhaven Service Center and NTEU, Chapter 99, 9 FLRA 930 (1982)]

When a bargaining unit employee is questioned in preparation for a proceeding before a third party (e.g., arbitration, FLRA hearing), the agency has certain obligations it must meet when requesting the participation of an employee. Management must take precautions to preserve employees’ protected rights to “form, join, or assist any labor organization or to refrain from such activity, freely and without fear of penalty or reprisal.” [5 USC 7102] Therefore, if management interviews bargaining unit employees in preparation for a third party proceeding, in order to guard against any coercive effects of its request:

• the Agency must inform the employee who is to be questioned of the purpose of the questioning, assure the employee that no reprisal will take place if he or she refuses, and obtain the employee’s participation on a voluntary basis;
• the questioning must occur in a context which is not coercive in nature; and
• the questions must not exceed the scope of the legitimate purpose of the inquiry or otherwise interfere with the employee’s statutory rights.

Therefore, because participation is voluntary, you do not have to do so and the agency cannot reprise against you for your refusal. If you do participate, the interview must not be coercive and cannot exceed the stated purpose of the interview.

In addition, NATCA is entitled to receive advance notice and to be present when management interviewed a union witness prior to an arbitration hearing. [Dept. of Air Force, Sacramento Air Logistics Center, McClellan Air Force Base and AFGE Local 1857, 29 FLRA 594 (1987)]. 5 USC 7114(a)(2)(A) mandates that an exclusive representative have the opportunity to represented at “any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general conditions of employment.” In McClellan, the FLRA found that interview of the employee was a formal discussion since the employee was requested to attend in advance, the subject was determined in advance, the meeting was conducted in the agency counsel’s office by counsel, management officials were present, and the meeting concerned a grievance about to be arbitrated. The FLRA also decided that prior notice to the union was necessary to enable the union to choose its own representative.

If the FAA has failed to give you notice of the voluntary nature of the interview and/or failed to notify NATCA in advance of the interview a grievance or ULP can be filed.